Oliver Schwindt

Patent Trials and Appeals Board

Jan 3, 2020

14271650 - (D) (P.T.A.B. Jan. 3, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/271,650 05/07/2014 Oliver Schwindt 081276-9736-US00 4112
34044 7590 01/03/2020
MICHAEL BEST & FRIEDRICH LLP (Bosch)
100 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
EXAMINER
CHEN, SHELLEY
ART UNIT PAPER NUMBER
3663
NOTIFICATION DATE DELIVERY MODE
01/03/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mkeipdocket@michaelbest.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte OLIVER SCHWINDT
Appeal 2019-000956
Application 14/271,650
Technology Center 3600
Before CHARLES N. GREENHUT, WILLIAM A. CAPP, and
JEREMY M. PLENZLER, Administrative Patent Judges.
Opinion Dissenting In Part filed by GREENHUT, Administrative Patent
Judge.

PLENZLER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6–8, and 10–15. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Robert Bosch
LLC. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to detecting the presence of a trailer. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of detecting presence of a trailer being towed by
a host vehicle comprising the steps of:
determining a velocity of the host vehicle;
detecting, with at least one radar sensor, a velocity and a
distance of an object spaced outwardly from the rear
of the host vehicle;
comparing the velocity of the host vehicle to the velocity
of the object to determine when the velocity of the
host vehicle is the same as the velocity of the object;
and
determining that the object comprises a trailer secured to
the host vehicle when
1) the velocity of the host vehicle is greater than or
equal to a minimum velocity value,
2) the velocity of the host vehicle is the same as the
velocity of the object,
3) the distance of the object from the host vehicle
remains constant, and
4) the distance of the object from the host vehicle is
less than or equal to a maximum allowed
distance.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Koenig 6,446,998 B1 Sept. 10, 2002
Allen US 7,136,828 B1 Nov. 14, 2006
Schober US 2007/0159311 A1 July 12, 2007
Kim US 2008/0024283 A1 Jan. 31, 2008
Collings US 2010/0065344 A1 Mar. 18, 2010
Koike JP 2010-152732 Jul. 8, 2010
Hallek DE 10201217668 Mar. 13, 2014

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REJECTIONS2
Claims 1–4, 6–8, and 10–15 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Koike, Hallek, Schober, and Allen.
Claims 1–4, 6–8, and 10–15 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hallek, Koike, Schober, and Allen.
Claims 1–4, 6–8, and 10–15 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hallek, Koenig, Schober, and Allen.
Claims 1–4, 6–8, and 10–15 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Hallek, Kim, Schober, and Allen.
OPINION
Claim Construction
The claims relate to determining whether an object behind a vehicle is
a trailer based, in part, on velocities of the vehicle and that object.
Appellant’s dispute with the Examiner’s rejections focuses on whether the
cited references teach “velocity” determinations and comparisons as that
term is used in the claims. See Appeal Br. 7–8. Appellant acknowledges
that “velocity” is commonly used “to describe only speed,” but alleges this is
a “misusage of the term.” Id. at 8. Appellant contends that “[v]elocity is a
well-defined term in the art,” and “the Oxford English Dictionary defines
‘velocity’ as ‘[t]he speed of something in a given direction.’” Id. at 7.
Based on this definition, Appellant contends that “the term ‘velocity’ . . .
includ[es] both speed and direction.” Id. Accordingly, Appellant contends
that “determining a velocity . . . requires determining both a speed
component . . . and a direction component.” Id.

2 Claims 16 and 17 are cancelled.
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The Examiner explains that “[c]ommon definitions for ‘velocity’ do
not necessarily include direction information, and the Applicant’s original
disclosure does not at any point indicate or suggest that ‘velocity’ includes
direction information.” Ans. 3. The Examiner cites dictionary definitions in
support of this construction. See id. at 3–4 (providing definitions without a
directional requirement, such as “speed”). The Examiner further explains
that “Applicant’s original disclosure [does not] at any point describe the
detection or comparison of the direction of travel of vehicles, which would
be required by the claims if ‘velocity’ includes both speed and direction
information.” Id. at 3. Appellant acknowledges that the Specification does
not define velocity as requiring direction. See Appeal Br. 8 (explaining that
“Appellant’s original disclosure d[id] not need to explicitly define ‘velocity’
as including both speed and direction”). Appellant replies that the
Examiner’s “definitions for ‘velocity’ are incomplete in the context of the
claimed subject matter because these definitions do not account for a host
vehicle’s ability to move in multiple directions, not just in straight lines.”
Reply Br. 2. Appellant also contends that “[o]ne of ordinary skill in the art
also understands that the ‘host vehicle’ and the ‘object’ may be traveling at
the same speed but in different directions.” Id.
We focus our discussion on claim 1 because Appellant’s arguments
focus on the features recited in claim 1. See Appeal Br. 7–19; Reply Br. 2.
With respect to “velocity,” claim 1 requires “determining a velocity of the
host vehicle,” “detecting . . . a velocity . . . of an object spaced outwardly
from the rear of the host vehicle,” and “comparing the velocit[ies].” One
requirement for the method of claim 1 to “determinin[e] that the object
comprises a trailer secured to the host vehicle” is that “the velocity of the
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host vehicle is the same as the velocity of the object.” The velocity of the
object relative to the host vehicle is zero when the method determines “a
trailer secured to the host vehicle.” That is, the claim is concerned with
determining whether the object is stationary relative to the vehicle.
Based on the record before us, we do not see a meaningful distinction
between “velocity” and “speed.” Appellant does not persuasively explain
why direction is required under the broadest reasonable interpretation of
“velocity” in the claim. Rather, Appellant simply alleges, repeatedly, that
speed is not velocity. Direction is simply not used in either the claim or the
Specification.
Claim 1 recites “determining a velocity of the host vehicle” and
determining whether “the velocity of the host vehicle is greater than or equal
to a minimum velocity value.” Our construction of “velocity” is consistent
with the Specification. The Specification explains that “the velocity of the
host vehicle is compared with a defined minimum velocity value” so that “a
car stopped behind a stopped host vehicle will not be unintentionally
determined as a trailer” because “[i]f the measured velocity is not greater
than or equal to the defined minimum velocity, the algorithm does not
continue determining the presence of a trailer.” Spec. ¶ 19. The direction of
the host vehicle does not matter for such a determination, as the algorithm
only cares whether the host vehicle is moving at a speed above a given
threshold in any direction (i.e., it does not distinguish between the vehicle
moving north, south, east, west, backward, forward, left, or right). Indeed,
Appellant’s Specification effectively states that velocity and speed are
synonymous in this step. See id. (“By not sensing without a minimum
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velocity or speed for the host vehicle, a car stopped behind a stopped host
vehicle will not be unintentionally determined as a trailer.”).
As for claim 1’s “detecting . . . a velocity and a distance of an object,”
that, too, does not depend on a separate “direction” detection because the
direction of the object and the vehicle is already accounted for by the fact
that it is a relative velocity of the object (i.e., the velocity of the object
relative to the host vehicle). Claim 1 requires “comparing the velocity of the
host vehicle to the velocity of the object to determine when the velocity of
the host vehicle is the same as the velocity of the object.” That
determination is made using “at least one radar sensor” in claim 1, which
claim 1 implies is coupled to the vehicle. Consistent with this
understanding, the Specification explains that “rearward sensors 18 [are]
mounted on the rear end of a host vehicle 24” (Spec. ¶ 17) and that “[t]he
rearward sensor 18 is one or more radar modules, light detecting and ranging
(LIDAR) modules, or video detection modules” (id. ¶ 14).
Under the broadest reasonable interpretation, and consistent with
Appellant’s Specification as explained above, the velocity comparison
recited in the claim does not require a separate direction determination. To
the extent the “direction” of the object must somehow be taken into account,
“direction” is necessarily accounted for by the relative nature of the object’s
velocity (or speed) relative to the host vehicle.3 This is illustrated in
Appellant’s Figure 3, reproduced below.

3 We note that relative speed provides a directional component in order to
show that even if we were to accept Appellant’s construction of velocity as
requiring direction, that is met by relative speed.
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Figure 3 is a flowchart for determining when a trailer is connected to a host
vehicle.
As seen above in Step 38, a relative velocity of the object is obtained.
At Step 40 an evaluation is made as to whether that relative velocity is zero.
That is, a determination is made as to whether the object is moving (i.e.,
whether the speed is non-zero) when the host vehicle is the frame of
reference. If the object’s relative velocity is non-zero (i.e., it is moving
relative to the host vehicle), it does not matter whether it is moving in the
same direction as the host vehicle or in a different direction. The only thing
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that matters is that the object is not stationary relative to the host vehicle.
Again, because the host vehicle is the frame of reference, direction is
necessarily accounted for as explained above.
Appellant’s argument that a definition of “velocity” without direction
is “incomplete in the context of the claimed subject matter because these
definitions do not account for a host vehicle’s ability to move in multiple
directions, not just in straight lines” is unpersuasive. Reply Br. 2. Appellant
does not cite, nor do we see, anything in the Specification supporting this
position. In fact, the only discussion of direction in the Specification relates
“to detect[ing] the presence of the trailer while driving in a straight line
direction.” Spec. ¶ 6; see also id. ¶ 17, claim 7 (“the trailer detecting unit is
configured to detect the presence of the trailer while driving in a straight line
direction”).
Based on the record before us, and for purposes of this appeal, we
determine that “speed” is synonymous with “velocity” for the reasons set
forth above.

Koike Rejection
The Koike rejection relies on a finding that Koike teaches “detecting a
velocity . . . of an object spaced outwardly from the rear of the host vehicle
(Abstract, claim 1, ¶¶ 4, 15, 21, 26, etc.).” Non-Final Act. 4. Appellant
responds that “[n]one of the portions of Koike cited by the Examiner (or any
other portion) explicitly teach detecting a velocity of an object located
behind the vehicle.” Appeal Br. 9. The Examiner does not address
Appellant’s response in the Answer. See Ans. 4–8. The portions of Koike
cited by the Examiner in the Non-Final Action or the Answer do not support
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the finding that Koike teaches “detecting a velocity . . . of an object spaced
outwardly from the rear of the host vehicle.” See Koike, Abstract, claim 1,
¶¶ 4, 12, 15, 21, 26.
Accordingly, we do not sustain the Examiner’s decision to reject
claims 1–4, 6–8, and 10–15 as being unpatentable over Koike, Hallek,
Schober, and Allen.

Hallek Rejections
With respect to each of the Hallek rejections, Appellant argues
claims 1–4, 6–8, and 10–17 as a group, specifically addressing the features
of claim 1. See Appeal Br. 15–19. We select claim 1 as representative for
each of the Hallek rejections. Claims 2–4, 6–8, and 10–17 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). The relevant arguments presented
by Appellant with respect to Hallek for each of the rejections are similar.
Accordingly, we address specifically only those presented with respect to the
Hallek, Koike, Schober, and Allen rejection, with the understanding that
discussion applies equally to the Hallek, Koenig, Schober, and Allen
rejection, as well as the Hallek, Kim, Schober, and Allen rejection. The
additional contentions related to the other references used in the various
combinations assert that those references, too, teach speed, which is not
velocity. See, e.g., Appeal Br. 10 (“Schober merely teaches determining a
speed of the following vehicle.”), 11 (“Allen merely teaches determining
speeds of vehicles and objects on a road.”).4

4 Although made in connection with the Koike rejection, Appellant reasserts
these contentions for the Hallek rejections. See Appeal Br. 15–18.
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The Examiner finds that Hallek teaches the majority of the limitations
recited in claim 1, including “determining a velocity of the host vehicle” and
“detecting velocity and distance of an object (10, 12) spaced outwardly from
the rear of the host vehicle.” Non-Final Act. 6 (citing Hallek ¶¶ 35, 37, 41).
The Examiner finds that
Hallek does not explicitly disclose the condition that 1) the
velocity of the host vehicle is greater than or equal to a
minimum velocity value, or that [2)] the detecting is performed
with at least one radar sensor, or [3)] comparing the velocity of
the host vehicle to the velocity of the object to determine when
the velocity of the host vehicle is the same as the velocity of the
object.
Id. at 7 (emphasis omitted). The Examiner further finds, however, that “the
velocity of the host vehicle must inherently be greater than or equal to 0,
which qualifies as a minimum velocity value,” and, therefore, “Hallek only
determines that the object comprises a trailer secured to the host vehicle
when all 3 conditions are met.” Id.
Appellant does not provide any particular argument rebutting the
Examiner’s findings with respect to Hallek, other than those presented with
respect to the Koike rejection. See Appeal Br. 15–18. The only argument
presented with respect to Hallek’s teachings is that “Hallek does not teach or
suggest detecting a velocity of the trailer (10) or the obstacle (12)” because
“Hallek merely teaches determining the relative speed of an object (10, 12)
located behind the motor vehicle (1) based on changes in consecutive
measurements received from the ultrasonic sensors (3-6).” Id. at 9 (citing
Hallek ¶ 17). This argument is not persuasive for the reasons set forth above
in our claim construction discussion because it is based on a distinction
between “speed” and “velocity” not required by the claim. Id. at 8–9. As
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noted above, Appellant acknowledges that Hallek teaches determining the
relative speed of the object relative to the vehicle. Id. at 9. As explained
above, this is the same as what is illustrated in Appellant’s Figure 3
flowchart. Appellant does not dispute any other particular finding made by
the Examiner related to Hallek, including those regarding inherency noted
above.
As noted above, Appellant’s remaining contentions related to the
Hallek rejections are all based on a distinction between “speed” and
“velocity” that is not required by the claim (Appeal Br. 15–19), which are
unpersuasive as explained above.
Accordingly, we are not apprised of error in the Examiner’s decision
to reject claims 1–4, 6–8, and 10–15 as being unpatentable over Hallek,
Koike, Schober, and Allen, as being unpatentable over Hallek, Koenig,
Schober, and Allen, or as being unpatentable over Hallek, Kim, Schober,
and Allen.
CONCLUSION
The Examiner’s rejection based on modifications to Koike’s teachings
is reversed. The Examiner’s rejections based on modifications to Hallek’s
teachings are affirmed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6–8,
10–15
103(a) Koike, Hallek,
Schober, Allen
1–4, 6–8,
10–15
1–4, 6–8,
10–15
103(a) Hallek, Koike,
Schober, Allen
1–4, 6–8,
10–15

1–4, 6–8,
10–15
103(a) Hallek, Koenig,
Schober, Allen
1–4, 6–8,
10–15

1–4, 6–8,
10–15
103(a) Hallek, Kim,
Schober, Allen
1–4, 6–8,
10–15

Overall
Outcome
1–4, 6–8,
10–15

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

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GREENHUT, Administrative Patent Judge, Dissenting In Part.
I agree with the majority’s decision to reverse the Examiner’s
rejection that relied on Koike as the primary reference for essentially the
reasons stated by the majority. I disagree with the majority’s decision to
sustain the remaining rejections on the grounds specified by the Examiner.

“Velocity” requires more than speed alone
In construing the term “velocity” the majority “do[es] not see a
meaningful distinction between ‘velocity’ and ‘speed.’” Opinion at 5. The
majority reaches this conclusion because “Appellant does not persuasively
explain why direction is required under the broadest reasonable
interpretation of ‘velocity’ in the claim.” Id. I disagree with allocating this
burden to Appellant. It is only when an applicant seeks to depart from the
ordinary and customary meaning in the art that the applicant must set forth a
special definition of a term. MPEP § 2111.01. I believe those skilled in the
automotive engineering arts would readily understand the longstanding
ordinary and customary distinction between speed and velocity is, as
Appellant correctly argues (Appeal Br. 7–8), speed is a magnitude and a
scalar quantity, while velocity includes directional information.5

5 See, e.g., Delmar’s automotive dictionary, D. South and B. Dwiggins
(1997) (“speed: A rate of motion measured in miles per hour or kilometers
per hour”; “velocity: The rate of motion in a particular direction.”); see also,
e.g. https://en.wikipedia.org/wiki/Speed#Difference_between_speed_and_
velocity (“Speed denotes only how fast an object is moving, whereas
velocity describes both how fast and in which direction the object is
moving”) (citing Wilson, Edwin Bidwell (1901). Vector analysis: a text-
book for the use of students of mathematics and physics, founded upon the
lectures of J. Willard Gibbs, p. 125).
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The Examiner cites a general dictionary definition which lacks
mention of directional information as an aspect of velocity. Ans. 3–4.6
Appellant counters with a general dictionary definition of velocity that
includes a directional component. Appeal Br. 7.7 I do not disagree with the
majority that it is appropriate to look to the Specification to determine which
of the possible proposed meanings should be given to the term:
In construing claim terms, the general meanings gleaned from
reference sources, such as dictionaries, must always be compared
against the use of the terms in context, and the intrinsic record
must always be consulted to identify which of the different
possible dictionary meanings is most consistent with the use of
the words by the inventor. “Where there are several common
meanings for a claim term, the patent disclosure serves to point
away from the improper meanings and toward the proper
meanings.”
Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1300 (Fed.
Cir. 2003) (citations omitted). I do note that if the Examiner engaged in any
such fact finding and analysis similar to that undertaken by the majority, it
has not been provided by the Examiner in the record for our review. Rather,
the entirety of the Examiner’s analysis on this point is:
Applicant’s original disclosure does not at any point indicate or
suggest that ‘velocity’ includes direction information. Nor does
the Applicant’s original disclosure at any point describe the
detection or comparison of the direction of travel of vehicles,
which would be required by the claims if ‘velocity’ includes both
speed and direction information. Thus, the interpretation of
‘velocity’ that includes direction information contradicts the
original disclosure.

6 Citing https://www.merriam-webster.com/dictionary/velocity.
7 Citing the Oxford English Dictionary.
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Ans. 3.
Again, as indicated above, I do not believe the applicant bears the
burden of expressly defining a term unless that term is being used in a
manner that is inconsistent with the ordinary and customary meaning in the
particular art involved. Here, the Examiner, by citing a general dictionary
definition, has not demonstrated that one skilled in the automotive arts
would regard speed as simply synonymous with velocity. Ans. 7–8.
The Examiner and majority also base their conclusion on their
determination that the directional component of velocity is not itself
discussed and may not even be needed to practice the invention. See
Opinion 7–8 (“The only thing that matters is that the object is not stationary
relative to the host vehicle.”). Respectfully, it is up to applicants and not this
Board to determine the best modes of their inventions and also what
applicants regard as their invention under 35 U.S.C. § 112(a) and (b),
respectively. Although I do not agree that directional information can be
regarded as superfluous to Appellant’s ultimate goal here, even if it could, in
my view, that would not present a sufficient reason to define, or redefine, the
actual word “velocity” so as not to require directional information.
The majority looks to step 36, discussed in paragraph 19 to conclude,
“Appellant’s Specification effectively states that velocity and speed are
synonymous in this step.” Opinion 5. I cannot agree that Appellant’s
reference here to “velocity or speed” evinces that the words themselves
should be regarded as “synonymous.” Step 36 refers to the determination
that a vehicle is not stopped. This is the only instance where it is clear that
the techniques of measuring speed or velocity would work equally well to
ascertain that particular information. The fact that Appellant disclosed a
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velocity measurement as functionally interchangeable with a speed
measurement in this particular step does not demonstrate that Appellant
regarded the actual words speed and velocity to be “synonymous.” Rather,
if anything, it evinces just the opposite—that Appellant was aware of both
terms and employed “speed” only where a speed measurement could
suitably be interchanged with a measurement of velocity. This suggests,
contrary to the majority’s view, that elsewhere in the Specification,
including in the claims, the word “velocity” should not be regarded as
“synonymous” with speed. Different words should be presumed to have
different meanings absent convincing evidence to the contrary.
For the foregoing reasons, I disagree with the majority’s claim
construction that, in the present context, the recited term “velocity” can
mean simply “speed.”

“Relative speed”
A determination of obviousness, involves at least two steps. First is
construing the claim, followed by a comparison of the construed claim to the
prior art. Key Pharms. v. Hercon Labs. Corp., 161 F.3d 709, 714 (Fed. Cir.
1998) (citations omitted). The majority’s discussion of “relative” conflates
these steps making the majority’s exact position unclear. I do not find in the
record any specific discussion from the Examiner regarding the meaning of
“relative.” If speed is synonymous with, and sufficient to meet the recited
term, “velocity,” as the Examiner and the majority seem to conclude, there is
really no need to delve into the meaning of “relative,” because it does not
appear to be disputed that Hallek determines and detects speed in some form
or another. See Opinion 5–8, 10. It appears that the majority is considering
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Appellant’s Specification and finding a process that, in the majority’s view,
is sufficiently similar to that of Hallek in order to conclude that the claimed
subject matter is unpatentable. Distilling the invention down to a “gist” is
an inappropriate process by which to determine patentability. MPEP
§ 2141.02(II). The examination of patent claims demands more precision
than this. All words in a claim must be considered in judging the
obviousness of the claimed subject matter. MPEP § 2143.03 (citing In re
Wilson, 424 F.2d 1382, 1385 (CCPA 1970)).
Use of the same modifier, “relative” prefacing “speed” in Hallek and
“velocity” in Appellant’s Specification is certainly not evidence that the
terms speed and velocity are themselves synonymous. The majority also
determines “relative speed” in Hallek “is the same as what is illustrated in
Appellant’s Figure 3.” Opinion at 10–11. This seems to lead the majority to
conclude that, perhaps if not encompassing a determination or detection of
speed per se, a determination or detection of velocity according to claims 1
and 8 encompasses a determination of “relative speed” as described by
Hallek. Opinion at 10–11 (emphasis in original).
Any discussion of Hallek should be prefaced by recognizing that
Hallek is a machine-generated translation. See Hallek at 1.8 The familiar
rule that the comparison of the construed claim to the prior art is not an
ipsissimis verbis test turns both ways. A difference in terminology does not
preclude a finding that something in the prior art satisfies the language of the

8 “This translation is machine-generated. It cannot be guaranteed that it is
intelligible, accurate, complete, reliable or fit for a specific purpose. Critical
decisions, such as commercially relevant or financial decisions, should not
be based on machine-translation output.”
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claim. However, the prior art’s use of similar, or even identical, terminology
does not necessarily compel the conclusion that the claim language is
satisfied, particularly where the prior art is a machine-generated translation
that may not employ words accurately reflecting the lexicon of those skilled
in the particular art involved. As our reviewing court’s predecessor has
reminded, “[i]n the construction of words, not the mere words, but the thing
and the meaning, are to be inquired after.” In re Neugebauer, 330 F. 2d 353,
356 n.4 (CCPA 1964).
In the appealed action, regarding the determining and detecting steps,
the Examiner cited paragraphs 35, 37, and 41 of Hallek without any detailed
analysis of these paragraphs. Non-Final Act. 6. The Examiner did not offer
any further discussion of these portions of Hallek in the Answer, instead
appearing to rely mainly on the claim construction discussed above that
velocity can mean speed. Ans. 3–8; see also Non-Final Act. 2–3.
To the extent the majority thinks otherwise, I note that “relative” in
paragraphs 37 and 41 of Hallek appears to be referring to speed comparisons
between the sensors 3–6 mounted on the vehicle 1 themselves and not
between the vehicle 1 and its trailer 10. Paragraph 17 of Hallek, which was
cited by the Examiner regarding another portion of the claim, provides the
best indication as to what Hallek means by the subject matter translated as
“relative speed.”
Hallek’s sensors 3–6 measure distance between a sensor (on the
vehicle 1) and an object. Hallek ¶ 2. If this is purely distance, as stated, all
that indicates is the radius of the circle around the sensor on which the object
must lie. If there is a directional component to this distance measurement
then the discussion in paragraph 17 of measuring its rate of change with
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respect to time would, in fact, necessarily equate to measuring velocity.
However, I do not find any evidence in Hallek that the “distance” reported
by sensors 3–6 is directional or that these “distance” measurements would
have been more aptly characterized as measurements of actual position.9
It could conceivably be the case that acquiring direction information is
an inherent characteristic of all ultrasonic sensors of the type taught by
Hallek. However, there is no evidence or analysis of record presently before
us demonstrating that this is necessarily the case. There is also no evidence
or analysis in the record before us demonstrating that sensors of the type
disclosed by Appellant “necessarily account[]” for direction simply by virtue
of being located on the host vehicle. Opinion at 6. Information that may not
be known generally, but which a skilled artisan might recognize as an
inherent characteristic of a prior-art element, should be made of record to
facilitate appellate review. See, e.g., Continental Can Co. USA v. Monsanto
Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991). On the present record, it is
inappropriate for the majority to group Hallek’s sensors with those of
Appellant and conclude they all must detect “velocity,” to the extent it
requires direction information. The fact that Appellant’s Specification may
lack an express discussion as to how to use the particular sensors disclosed
to actually determine velocity might suggest that there is other uncited
evidence available somewhere demonstrating that such a technique was
well-known in the art. However, that is speculative at this point, and the
absence of a discussion in the Specification expressly teaching how to use

9 Velocity being the rate of change of position with respect to time and speed
the rate of change of distance with respect to time. See
https://en.wikipedia.org/wiki/Speed.
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the disclosed sensors to determine velocity is not a reason to redefine the
metes and bounds of the term “velocity” itself.

Measuring speeds towards or away from the vehicle (i.e., “approach” and
“removal”)
Paragraph 17, though not expressly discussed by the majority, appears
to present the strongest support for the majority’s conclusion that Hallek’s
process teaches at least the step of “detecting . . . a velocity and a distance of
an object spaced outwardly from the rear of the host vehicle.” In the context
of the turning trailer (Hallek Fig. 2), paragraph 17 of Hallek states
“ultrasonic sensors each have a change in distance per unit of time” and
associates “relative speed” with that. In this paragraph, Hallek is not
looking for a zero measurement, but for opposing side sensor measurements,
“approach” and “removal,” to be essentially equal. In this context, Hallek,
at least as translated, expressly uses the term “velocities” to describe this
particular measurement: “the ratio of these two velocities is substantially
equal to one.”
Knowing whether something is approaching or retreating, and the
speed at which it does so, does not necessarily indicate the direction of that
approach or retreat in three-dimensional space. However, this at least
indicates what can be described as the magnitude and direction of motion in
at least one dimension of what can be described as a polar coordinate system
centered around the measuring sensor. This measurement may therefore fall
within the broadest reasonable interpretation of “detecting . . . velocity . . . of
an object spaced outwardly from the rear of the host vehicle.” This particular
claim limitation does not require the directional component of velocity to be
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determined with respect to any specific reference frame or in any specific
number of dimensions. Although I reach this conclusion on the evidence
presently before us, I do not find this particular issue sufficiently developed
in the record to conclude that this formed part of the grounds for rejection
specified by the Examiner.

“determining a velocity of the host vehicle” and “comparing the velocity of
the host vehicle to the velocity of the object.”
Relative speed, being based on, as the majority points out, the host
vehicle as the frame of reference (Opinion at 7–8) can be detected without
ever “determining a velocity of the host vehicle” or “comparing the velocity
of the host vehicle to the velocity of the object.” Appeal Br. 11–12. This is
because the host vehicle’s velocity is irrelevant to that process. The
majority’s comment that “[t]he only thing that matters is that the object is
not stationary relative to the host vehicle” (Opinion 7–8) does not present an
excuse to ignore limitations actually recited in the claim just because the
majority believes the recited results can be obtained without actually
carrying out those specifically recited steps. I do not find these disputed
limitations “determining a velocity of the host vehicle” and “comparing the
velocity of the host vehicle to the velocity of the object” to be adequately
addressed by the majority or the Examiner.

“two adjacent objects (one travelling behind the other) on a roadway, as
shown by Allen, must be traveling in the same direction.”
The majority does not appear to place any reliance on the Examiner’s
comment quoted above concerning Allen. See Ans. 4, 6, 8. It is also Allen
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that the Examiner cites regarding the challenged velocity comparison step.
Non-Final Act. 8, 10, 13. Appellant correctly points out that just because the
vehicles are following each other on a particular roadway, comparing their
speeds does not necessarily amount to comparing their velocities, as those
skilled in the art would understand that phrase, because their directions may
not be exactly the same. Appeal Br. 11–12.

37 C.F.R. § 41.50(a)
37 C.F.R. § 41.50(a) states that “[t]he Board, in its decision, may
affirm or reverse the decision of the examiner in whole or in part on the
grounds and on the claims specified by the examiner.” Our reviewing court
has held that a “ground of rejection” in the context of our appellate rules “is
not merely the statutory requirement for patentability that a claim fails to
meet but also the precise reason why the claim fails that requirement.”
Hyatt v. Dudas, 551 F.3d 1307, 1312 (Fed. Cir. 2008). Insofar as the
disputed limitations are concerned, the grounds of rejection specified by the
Examiner in both the appealed action and the Answer were premised on the
Merriam-Webster’s definitions for “velocity” and Allen. See Non-Final Act.
2–3, Ans. 3–8. My disagreement with these points is sufficient for me to
conclude that I would reverse the Examiner’s decision “on the grounds []
specified by the examiner.” This is all that Appellant was obligated to argue
under 37 C.F.R. § 41.37(c)(1)(iv) (“The arguments shall explain why the
examiner erred as to each ground of rejection contested by appellant.”).
I recognize that a conclusion of obviousness is not foreclosed when
the prior art does not contain the “precise teachings directed to the specific
subject matter of the challenged claim” because one “can take account of the
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inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). We have
not invoked our authority to enter new grounds under 37 C.F.R. § 41.50(b).
The possibility that there may be other alternative potential grounds for
rejecting the claims is not relevant for purposes of deciding to affirm or
reverse the Examiner’s rejections in the present appeal under 37 C.F.R.
§ 41.50(a). In re Stepan Co., 660 F.3d 1341, 1345 (Fed. Cir. 2011) (It is the
PTO’s obligation to provide timely notice to the applicant of all matters of
fact and law asserted.). “[L]egal determinations of obviousness, as with
such determinations generally, should be based on evidence rather than on
mere speculation or conjecture.” Alza Corp. v. Mylan Labs., Inc., 464 F.3d
1286, 1290 (Fed. Cir. 2006). The Examiner, being the primary investigative
Agency fact-finder is in the best position to furnish any such evidence that
might be available. See In re Voss, 557 F.2d 812, n.11 (CCPA 1977)
(“[R]eversal is not a mandate to the PTO to issue a patent and does not
preclude the PTO from reopening prosecution”); Ex Parte Frye, 94 USPQ2d
1072, 1077 (BPAI 2010) (precedential) (“The Board does not ‘allow’ claims
of an application and cannot direct an examiner to pass an application to
issuance.”).
I respectfully dissent from the majority’s decision to affirm the
Examiner’s rejections relying on Hallek as the primary reference.